Disclosure Rule The First Step Toward Quotas

Remember Steve Waldman? He's the former journalist who FCC Chairman Julius Genachowski hired to write a report on the state of local media in the digital age, to serve as a basis for policymaking.

Well, Waldman has left the FCC and he is now a visiting scholar at Columbia University and writing a column for the Columbia Journalism Review. In his latest effort, which we linked to on Monday, he scolds broadcasters for opposing the FCC's proposed disclosure rules, which would require stations to detail the kinds of programming they air in a uniform way and, in Waldman's words, move the information "out of their filing cabinets and onto the Internet."

Despite having many good things to say about broadcasting in his comprehensive and thoughtful report, he argues in the column as he did in the report that many broadcasters are shirking their obligation to serve the public interest as mandated by Congress many years ago. He argues that the disclosure rules would be the least onerous means of holding broadcasters accountable to that obligation.

"Do broadcasters believe that they even have a public interest obligation anymore?" he asks rhetorically in the column. Yes, he says, but only if the obligation "remains devoid of meaning."

I have a better answer: Yes, but only if broadcasters get to decide what the public interest is just as all other media do. They don't need or want guidance from Washington. The day is long past when content regulation can be justified on one segment of a TV medium that now also includes cable, satellite and the Internet.

Waldman contends that all that he wants is transparency. That's not too much to ask from an industry that demands transparency from others, he says.

But TV stations are perfectly transparent. If you want to know what a station is doing or not doing to serve the public interest, however you want to define it, all you have to do is turn on the TV and watch. It's all right there on the screen. No secrets.

Waldman knows this.

What he and other backers of the disclosure rules want is not transparency. What they want are statistics. They want to be able to state authoritatively that TV stations on average devote just X% of their air time to covering news or local public affairs or some other type of programming they believe is in the public interest.

Of course, no matter what X is, it's probably not going to be enough for them. So, then all it takes is the right mix of FCC commissioners to say that in order for a station to have a expectation of license renewal, it must air X+10% or X+20% of local public affairs. In effect, the FCC will have set a quota.

Stations that ignore it may not lose their license (that rarely happens), but they may not be able to sell it when the time comes. That's a powerful enforcement mechanism. It's why every broadcaster I know diligently complies with the children's programming quota.

A quota is nothing but a mandate. It's the federal government telling stations what programming they must air, and that slams right into broadcasters' First Amendment rights.

The RTDNA knows where the proceeding is going, even if Waldman pretends that he doesn't.

"Whether through quotas, mandatory air time or the type of raised-eyebrow regulation in the Form as proposed...," the RTDNA says in its comments in the disclosure proceeding, "any rule that would dictate, or not so subtly influence, broadcast licensees' decisions about how and whether to cover local news, local civic affairs or local electoral affairs represents an affront to journalistic freedom."

"Even when there exists a government interest and the government has chosen the most narrowly tailored means to further that interest, government is forbidden from censoring content or otherwise dictating categories of programming broadcasters must or must not show.

"The commission should not expand the law to suit the whim of particular public interest groups or individual regulators. Our freedom is too important for that."

That's well said, but RTDNA makes a terrible mistake by also arguing that reporting would be a big chore with no definite payoff and by suggesting ways to mitigate the burden should the FCC decide to go ahead with the disclosure requirements.

It sounds like the RTDNA doesn't really believe in all the First Amendment stuff. It's the kind of argument that a bad public defender makes: My client is absolutely innocent, but let's see what we can work out in a plea.

RTDNA needs to be bolder. It's flat wrong for the government to meddle in my editorial decision making. An America where that isn't so just can't be. Period.

Representing owners of the stations, the NAB should say what the RTDNA can't: If the FCC were to promulgate such rules, NAB will take the FCC to court. That's what any self-respecting newspaper publisher or, for that matter, online publisher would say if some government agency started toying with the idea of imposing content regulations on them.